Indigenous World 2019: Costa Rica
Eight distinct indigenous peoples inhabit the country. Seven of them are of Chibchense origin: Huetar in Quitirrisí and Zapatón; Maleku in Guatuso; Bribri in Salitre, Cabagra, Talamanca Bribri and Këköldi; Cabécar in Upper Chirripó, Tayni, Talamanca Cabécar, Telire and China Kichá, Lower Chirripó, Nairi Awari and Ujarrás; Brunca in Boruca, and Curré; Ngöbe in Abrojos Montezuma, Coto Brus, Conte Burica, Altos de San Antonio and Osa; Teribe in Térraba and one of Meso-American origin (Chorotega in Matambú).
In Costa Rica there are 24 indigenous territories, comprising 6.7% of the country’s territory (3,344 km2), at least according to the decrees that created them. According to the National Population Census of 2010, close to 100,000 people are recognized as indigenous, constituting 2.4% of the total Costa Rican population.
In Costa Rica, as in other countries of the Americas, title was granted to indigenous lands without consent. This continues to create conflicts, both within the territories and along its perimeters. These conflicts arise from the occupation of lands by third parties and illegal extraction of natural resources (lumber, animals and water, for example).
In Costa Rica, the indigenous peoples are among those with the most extreme poverty rates. The areas they inhabit have the lowest presence of public services, are difficult to access, and their best lands and natural resources are illegally occupied by non-indigenous persons, among other factors of a structural nature. If the human development index is used as a complex variable to indicate the degree of structural vulnerability, most indigenous territories are located in municipalities where that index is at its most negative levels.
ILO Convention 169 was ratified by Costa Rica more than two decades ago, but this did not lead to recognition of indigenous rights in the country. The indigenous peoples continue to be discriminated against, face the worst levels of social exclusion, and are allocated the lowest amounts of public investment.
The Indigenous Act of 1977 recognized traditional organizations of the indigenous as their representatives. Nonetheless, a regulation imposed a legal construct that bears no resemblance to the traditional structures of power of the indigenous peoples.
One more year without passing the Autonomous Development Act
In 2018, the government issued a decree establishing an indigenous consultation mechanism, which is possibly the greatest advance in fulfilment of Costa Rica’s indigenous rights obligations since ratification of ILO Convention 169.
In 1992, at the initiative of indigenous organizations, a process began to draft and pass a law to put ILO Convention 169 into practice and guarantee the rights of indigenous peoples. In 1994 that legislative bill was published in the Official Daily Gazette, and in 1997 an extensive consultation process was conducted (nearly 50 communities in the 22 territories that existed at the time). This consultation was approved by the Office of the Ombudsman for the Inhabitants, the Supreme Electoral Court, the ILO, and the United Nations Development Programme (UNDP). Based on the observations made during that process, in late 1998 the Indigenous Peoples’ Autonomous Development Act was introduced.
By 2018, that bill had been awaiting approval by the Congress of the Republic for more than a quarter of a century. On multiple occasions, Congress has submitted the text to a constitutional consultation, and time and again, the bill has been returned to them with a comment that it fails to comply with precepts of the Constitution of the Republic. In the first decade of the current millennium, the bill was also submitted to a new consultation in the indigenous territories, where the original text was approved. In 2014, the incoming government promised to get the law approved and introduced it to Congress, where it was shelved. In 2018, the incoming administration made the same promise, which it also failed to keep. Within Congress there is still strong resistance of a racist nature. The bill is also opposed by the private sector, which sees the right to self-determination and autonomous management of indigenous territories as posing a risk for investments in extractive industries.
Along the same lines, the 2014-2025 National Policy for a Society Free of Racism, Racial Discrimination, and Xenophobia, the implementation of which should have commenced in 2015, is yet to be put into practice in 2018.
Enactment of a consultation mechanism
After a participation process launched in 20161 to establish the rules for consultation in the country, the General Mechanism for Consultation of Indigenous Peoples was enacted on March 6, 2018 through Executive Decree number 40932-MP-MJP. This is possibly the greatest legislative for indigenous rights in Costa Rica since the ratification of ILO 169 in 1993.
The General Mechanism for Consultation of Indigenous Peoples calls for creation of an Indigenous Consultation Technical Unit under the umbrella of the Ministry of Justice and Peace, in charge of technical and financial management of consultation processes, along with the creation of Indigenous Territorial Consultation Bodies as indigenous counterparts to act as spokespersons with the government of the Republic during consultation processes. These bodies are supposed to be elected within each of the indigenous territories, in keeping with their own rules and mechanisms of representation, and play a role of logistical, specialized coordination in consultation issues.
It should be noted that this executive decree contains definitions of importance for indigenous rights in the country. For example, self-determination:
Is the right of indigenous peoples to freely determine their political status in order to freely attain their economic, social, and cultural development and to form a part of decision-making processes that affect them, as well as to fully participate, if they so desire, in the political, economic, social, and cultural life of the State. This right implies, in turn, the obligation of the State to ensure to the Indigenous Peoples that they will be duly consulted on matters that have or could have a bearing on their cultural and social life, in accordance with their values, uses, customs, and forms of organization.
Inclusion of traditional authorities means that:
All consultation and intercultural dialogue processes must take into account the traditional community structures and institutions that, by custom, are recognized by an indigenous people as a source of counsel or decision-making, including but not limited to the council of elders recognized by the indigenous people.
The mechanism also states that the consultation must be carried out through culturally appropriate procedures. This is extremely important, because it recognizes the diversity of decision-making systems among the various indigenous peoples and territories, and is a step forward from the UNDP proposal referred to repeatedly since 2011, which has called for a single consultation protocol, in violation of indigenous rights and realities. The mechanism defines a culturally appropriate procedure as one that allows for:
The free and proper expression of the systems of cultural, social and political organization of the Indigenous Peoples, as well as their forms of communication and their language, within the framework of their world view. All stages of the consultation process must be appropriate and in keeping with the cultural, socio-economic, geographical, demographic, and climatological particularities of the indigenous territories consulted.
The mechanism establishes that the state shall finance the consultations, and make sure they comply with international standards on indigenous rights. However, as 2018 came to a close, the Ministry of Justice and Peace, in charge of its implementation, had not made any progress in establishing the Indigenous Consultation Technical Unit. On the indigenous side, three Indigenous Territorial Consultation Bodies were created in Salitre, Cabagra, and Boruca, through a pilot plan supported by the Office of the United Nations High Commissioner for Human Rights (UNHCHR).2
Inadequate recognition of territorial rights
Costa Rica has recognized indigenous peoples’ territorial rights since 1956, and more than 300,000 lands have been registered in the name of indigenous peoples and communities. Those lands, however, have never been fully in the hands of indigenous peoples. Even though the Indigenous Act of 1977 established an annual budget exclusively earmarked for regularization of indigenous territories, four decades later, those funds have yet to be allocated. Currently, invasions of lands continue, and indigenous production systems have been destroyed by settlers who disparagingly turn the rainforests into pastures for cattle. Non-indigenous landholders occupy more than half of the areas of some territories.
The state has ignored the invasion of indigenous lands. Indigenous Development Associations, legitimated by the state, have enrolled non-indigenous foreigners as indigenous persons so that they can occupy lands. These acts have generated high levels of conflict, impeding indigenous territorial governance and human development, help explain why indigenous peoples live in poverty and social exclusion. The governmental institution in charge of clearing title for indigenous territories is the Rural Development Institute (INDER).
In 2011, in the Bribri territory of Salitre in the country’s Pacific South, a land recovery movement started, which spread to neighbouring territories, including Cabagra, Térraba and Rey Curré. Responses to this movement have included repeated outbreaks of violence on the part of non-indigenous landholders, while the state has taken no action to contain such violence. The Inter-American Commission on Human Rights (IACHR), since 2015, has thus requested that the government impose precautionary measures. It took two years, until 2017, for the Ministry of Justice and Peace to draft a protocol for implementing those measures. In 2018, they had yet to be implemented, and the acts of violence that form the basis for those measures continue to occur.
Frequent incursions by non-indigenous armed bands are still being seen in Salitre. These groups threaten indigenous members of the land recovery movement. On 25 December 2018, while homes and crops of movement members were burned, the national police never arrived. Discrimination in the region towards the indigenous in public services is also seen, for example, at the Social Security clinic, the middle school and in municipal governance.
In 2018, the INDER conducted an indigenous lands regularization program. No progress was made in clearing title for those lands, and no actions were taken for the physical demarcation of their perimeters. The illegal occupation of lands by non-indigenous persons continued.
In May 2018, the General Assembly of the Brunka Indigenous Territory of Rey Curré authorized the process for recovery of their ancestral lands, with the community itself commencing internal title-clearing actions:
An official communiqué issued by the Indigenous Development Association of Rey Curré states that as a local government and in the exercise of their powers, they now proceed to restore property, in defense of their territory, and to restore customary ancestral rights consecrated in ILO Convention 169, the Indigenous Act, and the principle of self-determination of Indigenous Peoples, for use of the collective in search of improving the quality of life of the community’s inhabitants.
This process commenced with the recovery of a 250-hectare property held by a non-indigenous landholder who was using it as pastureland for his cattle. The population’s main sources of water are located on those lands.
The situation is still similar to prior years: those involved in the land recovery movement continue their work with internal clearing of title within the perimeters of their lands, while those who hold the lands and other non-indigenous persons continue to engage in violence against the indigenous peoples. All the while, the government fails to apply the precautionary measures.
Access to justice
In July 2018, Congress passed Act 17,805, the Charter of Rights on Access to Justice for Indigenous Peoples, aimed at ensuring that the justice system respects the cultural reality of indigenous peoples. According to this law, “the application of justice for indigenous peoples of the country must respect these populations’ world view.” The law made progress towards compliance with Articles 2, 8, and 12 of ILO Convention 169.
The law provides that the Judiciary shall grant assistance of counsel in cases that so require. It also calls for training of judges, auxiliary personnel, defence attorneys and prosecutors. Trials and hearings must be held at the site of the incident to ensure that the parties are not removed from the area. Priority treatment must be given to indigenous persons along with the right to a translator. Furthermore, access to justice is guaranteed with free specialized technical assistance from the Public Defender’s Office.
The law also obligates the Judiciary to produce its own statistics regarding prosecutions of indigenous peoples and agrarian cases and to include indigenous issues in its five-year strategic plan, thus impacting all projects formulated in the plan.3
Advances in an intercultural approach to evaluating public policies
In 2018, the General Comptrollership of the Republic launched an auditing process for potable water services in the indigenous territories of Costa Rica.4 Of the 29 aqueducts analysed, only seven met all of the physical, chemical and microbiological standards required by Costa Rican regulations.
According to the Comptrollership’s report, in working with indigenous communities, an intercultural approach is pertinent, since indigenous communities have cultural codes different from those of the dominant society. They have different languages, sources of livelihoods and patterns of settlement. The report indicates that, “As a premise, all Indigenous Peoples in the country face a situation of structural vulnerability due to poverty and social exclusion, which is accentuated on account of a deficient water service.” It also indicates that the absence of an intercultural approach foments an indiscriminate vision of the indigenous territories, failing to recognize that they each require a different water management approach and that, given these circumstances,
Investments or acts of the Costa Rican Aqueducts and Sewers Institute might not be accepted and, therefore, might not meet their objective of ensuring a good service that improves conditions of life in these territories and contributes to overcoming their vulnerability.5
An intercultural approach would make it possible to take cultural norms into account in indigenous territories for handling water issues, using the indigenous peoples’ own territorial governance systems. Those norms are related to those communities’ consideration of water as a living being and as a manifestation of that which is sacred. The fact that an institutional audit is considering an intercultural approach to make public policy recommendations is of great significance.
In November 2018, women leaders of the indigenous territory of Cabécar in Upper Chirripó denounced that the National Council on Children frequently takes children away from their families on the grounds of domestic violence and alcoholism, placing them in shelters outside the community. In those shelters and, in other cases, in foster care, children face discrimination; are mocked on account of not speaking Spanish; and are insulted with racist slurs. Some of the children’s removals have taken place during community festivals. During those festivals, the adults drink a corn-based alcoholic drink named chicha de maíz.
This is a dire situation that contrasts with the willingness to engage in intercultural dialogue expressed by other governmental institutions. The denunciation of the practices of the National Council was submitted to the presidential advisor on indigenous rights, who passed it along to the authorities of the National Council. The response by the National Council to the denunciation attempted to justify the actions of their officers and indicated a lack of awareness of indigenous child-raising structures. Further, their response wrongly equates interculturality with simultaneous translation. The response also states that the National Council will prepare a specific policy for these communities.
In Costa Rica, the issue of indigenous rights, in particular rights to land and to self-determination, are strongly resisted by those who hold political and economic power. Despite ILO 169 being ratified in 1993, there is a general lack of compliance and implementation. The forms and structures of external social and political organizations continue to be imposed upon indigenous peoples throughout the nation. Their territories are being invaded by non-indigenous persons and agro-industrial companies, and public services are non-existent, insufficient or of poor quality.
In 2018 great progress was made thanks to indigenous peoples’ fight for their rights. Of particular importance were the executive decree for the consultation mechanism and the Charter of Rights on Access to Justice for Indigenous Peoples. Another important accomplishment was the incorporation by the General Comptrollership of the Republic of an intercultural approach to evaluate public policy, as well the participation by the National Indigenous Board of Costa Rica in various forums on environmental policy and climate change. Also, in November 2018, the Office of the President of the Republic requested advice from the Fund for the Development of Indigenous Peoples of Latin America and the Caribbean (FILAC). The aim of this request was to improve the institutional structures that address the rights and development of indigenous peoples, in particular the National Indigenous Affairs Commission (CONAI), which, ever since its founding, has been relegated to a limited assistance role, in part due to a lack of resources. The FILAC welcomed that request.
However, discrimination persists; territorial issues are far from being resolved, and the levels of social exclusion of indigenous peoples continue to be of serious concern.
Notes and references
Through Executive Order 042-MP, which defined the steps to be taken to reach a consensus on the characteristics of processes for consulting Indigenous Peoples in the
Bharley Quirós Aplicación de justicia respetará realidad cultural de indígenas. Diario Extra, 9 July, 2018.
See Semanario Universidad, “Contraloría denuncia deficiencias en servicio de agua en comunidades vulnerables.” Available at: http://bit.ly/2T9rKH2